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The Order of the Day, for the second reading of the Bill, being read,
Mr˙ T˙ Townshend said, the very deplorable situation of the Canadians ever since the late peace, has been a matter, I confess, which has repeatedly engaged my attention. Without law, without regulation, or any protection whatever, I must own, I often pressed that they should be put under some form of Government, or left to themselves, to choose a mode of regulation suited to their immediate wants; but little did I think that my solicitude was pressing on to a measure of so extraordinary a nature as the present; little did I think, that a country as large as half Europe, and within the Dominions of the Crown of Great Britain, was going to have the Romish religion established in it, as the religion of the State.
Little did I think, that so many thousand men, entitled and born to the rights of Englishmen, settling on the faith of the King' s proclamation, should, contrary to that assistance, contrary to every idea of the constitution, be subjected to French Papists, and French laws. Little did I think, that when the noble Lord opposite me was frequently applied to, session after session, in this House, to restore order and regulation, in a country where nothing for full twelve years had prevailed but anarchy and confusion; and that his Lordship assured us, that the Crown Officers in that country, the Crown Officers over the way (Solicitor and Attorney General,) the sages learned in the law, the first great law officer under the Crown in the other House, nay, even the Lord President of the Council, had been consulted, and had turned their closest attention to this subject; little did I think, I say, that any measure like the present could have been the united result of so many great, wise, grave, and learned men. Standing as I do, and astonished as I am, I call upon the noble Lord to answer and tell to which of those sages does the nation, do the Canadians, stand indebted for this extraordinary act of legislation. Is it to the Lord President, to the first law officer in the other House? Is it to the very able and learned gentleman over the way? or to his Majesty' s law servants in Canada? But let it have originated where it might, I rise not only to condemn the several clauses, but the very principle of the Bill, and shall be therefore against its being read a second time.
The Bill establishes a despotic Government in that country, to which the Royal Proclamation of 1763 promised the protection of the laws of England. I call it despotic; for so in fact it is, as the Council of Seventeen or Twenty-three is, with the Governor, the legislative, authority of the Province. This Council the Governor can appoint, suspend, and turn out, at his pleasure: there is no quorum appointed; for what purpose omitted, no one can tell. Now, Sir, this is rendering the Governor securely absolute; you had much better have made him literally so, and then he would not have had a Council to screen him: he is responsible in England, if he acts tyrannically; but by means of this convenient Legislative Council, he can do any thing with impunity.
Well, Sir, not content with constituting this Legislative Council, the mere creature of a Governor, who must
In the next place, Sir, the internal arrangement of the Colony consists in leaving the inhabitants the civil law of France. You take away the trial by Jury, in civil matters, and you cut off the habeas corpus from them. Thus, in giving a Government to the Canadians, you deprive many British born subjects, residing in countries where they never dreamed of such innovations, of the dearest birth-rights of Britains. And as by this Act all commissions to the legal Magistrates are revoked, I suppose the Province is to change her present excellent Chief Justice for a new one to be appointed. It is for these reasons, Sir, and for others, which I am clear will suggest themselves to all the members of the House, that I shall give my hearty negative to the Bill.
Lord North. The honorable gentleman has put a string of questions to me, which I am in no way able, nor, if I were, should I look upon myself bound to answer. I know not who drew the Bill up. I know not whether it was this great Lawyer, or that noble Lord. All I know about the matter is, that it is a Bill from the other House offered to us for consideration, and on which the House is at liberty to form that opinion best suited to its wisdom and judgment. I know further, that very great and uncommon pains have been taken to form a Bill least liable to inconvenience or objection from any quarter. The honorable gentleman has often pressed the King' s servants on this subject, and now owns that the affairs of that country call loudly for regulation and redress; yet the very first attempt that is made to put them on a proper footing, he at once condemns in the gross, and is willing to continue the evils he complains of, rather than attempt their correction in the first instance. For my part, all circumstances considered, I think the Bill is the best that can at present be devised; other gentlemen, may think otherwise; but at all events it seems to me proper that it should be permitted to go to a Committee; and if it shall then appear to be the sense of the House, that the Bill should pass in its present form, that it should receive amendments, or that particular clauses should be struck out, and others substituted in their stead; or, in fine, that it should be totally rejected; in any or either of these events, I shall be perfectly satisfied.
I wish to give the right honorable member all the satisfaction in my power upon this measure. Respecting the Government given to the Province, the right honorable gentleman objects, I suppose, to an Assembly not being appointed. The reason why a Council alone, appointed by the Governor, was preferred, was the small number of English settlers who must choose that Assembly, in order for their acts to govern and bind all the French and Roman Catholic subjects. This, Sir, was thought to be very unequal, and even cruel, to have an Assembly, chosen by so small a body, govern so large a one; and if the business is considered maturely, it will, I believe, be found the most conducive to the happiness of the People. Next, Sir, as to the extent given to this Colony; it takes in no countries regularly planted by British settlers, but merely distant military posts, at present without any Government but that of the respective commanding officers. Now, the question here is merely this, will you annex them under the present Government? Will you leave them without any Government? Or will you form separate Governments and Colonies of them?
It was thought by the Lords, that the plan in which there were the fewest inconveniences, was to throw the scattered posts to the Government of Quebec. As to the civil law of France being left to the Canadians, it was thought more humane to them than to change it for a new law, of which they must be entirely ignorant, as the trial by Jury, in criminal matters is given them. The present officers in the Province were not meant to be changed, most certainly.
Mr˙ Dunning. I cannot omit this opportunity of giving my hearty protest against a Bill, which, in my conscience, I think destructive of every principle of freedom, and abounding with mischief of a most serious tendency. Sir, I shall beg leave to follow the noble Lord in the reply he has given to the honorable member who stated his objections to the Bill; a reply which by no means answers those objections; on the contrary, they appear to me to remain in full force. And in endeavouring to do this, I shall divide what I have to observe into two considerations: first, the consequences which will attend this Bill if it passes, in case Canada should ever be restored to France, an idea which by no means hurts me; for if it should pass, I must own I would as soon see the one Sovereign reigning there as the other; I mean, it will be of little consequence to the People, and they will be as free in one case as in the other. My second consideration will be, if the Province should remain to England.
Consider what it was for which you engaged in the last war, encroachments of the French upon our Colonies; they passed down their rivers, they seized upon large tracts, and built forts about this very country to the southward of Canada, claiming it as a part of Canada. You repelled force by force; they offered to you to withdraw from the South of the Ohio, and retire to the North, making that river the boundary of the two Colonies. No, you replied; the river of St˙ Lawrence is the boundary of Canada; we will admit of no other; the tracts which you claim are parts of our Colonies of Virginia, Pennsylvania, &c˙, and we cannot grant away the certain and undoubted rights of our subjects in such a manner. This refusal brought on the war; and in case a future war should happen, in which your arms do not succeed in the manner they did in the last war, you may then find yourself treating upon the recession of Canada to France; will not the French demand the cession of Canada as you limit it by Act of Parliament? Will they not say, you have, by a solemn act of your whole Legislature, proved to all the world, that in the dispute of limits at the opening of the war we were right, and you wrong; you have chalked out the very limits to it, which we insisted on; and you have confirmed them by an act of Parliament; how therefore can you, with any propriety, talk of restoring any thing less than what we always claimed as Canada, and what you have since solemnly adjudged to be Canada? And this, I think, in a negotiation, may be attended with most serious consequences.
Next Sir, supposing you preserve the possession of it, let us consider the consequences that flow from this Act; you throw at once the whole People of that Colony into an arbitrary power, for such is that of your Governor, as it has been well stated; and you not only do this to the Canadian subjects, but, by giving to the new Province this monstrous southern extent, you run it down upon the back of the planted part of many of our Colonies, and take away, by one stroke, the charter properties confirmed by act of Parliament of those Colonies, you violently seize their rights, and the People who pass the mountains to settle on the eastern side of them, will immediately find, that by going to live in what they ever esteemed their direct property, they find themselves gone from the freedom of the British constitution, and meet with all the power of despotism. This is not only a cruel, violent, and odious measure, but it tears up justice, and all its principles, by the root. To think that the inhabitants of those countries, settling in them under the protection of this free Government, and assured by law and Parliament that they settle under the liberty of their old charter constitutions, finding themselves, by crossing an imaginary line, deprived of the dearest rights and privileges of English subjects, is a most tyrannical and inhuman conduct. It is sporting with property in a manner that cannot be defended, and for attaining no end whatever that deserves attention.
But there are much greater and more solid objections to the present Bill, than can possibly arise from the limits within which it is intended to operate. I am well warranted in affirming, and do without reserve affirm, that it is a Bill the most pernicious in its frame, and destructive of the principles of the constitution in its tendency, that was ever introduced into this House. What does it do? It appoints a Legislative Council, under the absolute controul
Mr˙ Attorney General Thurlow. Respecting the ill consequences that may flow from enlarging the Province of Quebec, in case of being forced by a future war to restore it, I cannot see that in the same light as my learned friend; because I think that the limits and importance of cessions are never dependant upon such arrangements as these, but upon the length of the sword; it is success in war that gives success in peace, and by no means the imaginary lines drawn by a State in its Colonies; nor have the limits now drawn any thing to do with old Canada; they take in countries never claimed by France; it is a new scheme, and by no means the restoration of those old limits the French once contended for.
With regard to the supposed cruelty of not giving the Canadians the same laws in every instance as we enjoy in England, I am so far from being of the same opinion, that I think you could not act more cruelly to that People, than to change at once their law of property, and give them our trial by Jury, which is necessarily giving our law of actions. I am clear it would so completely confound them, as to be more tyrannical than can be easily imagined. They would not understand the rule of their own actions; they would not know on what principles they stood possessed of their own property. In a word, you would give them the greatest curse, under the notions of a blessing. There is not a circumstance dearer to a man, nor one which he ought to be more jealous of, than to be tried in all points by laws to which he has been used, and whose principles are known to him.
He condemned in very harsh terms the advisers of the proclamation, and the imperfect, improper manner in which it was drawn up. He denied however, that it contained any such assurance as that contended for by the gentlemen on the other side. He said, that no such encouragement should have been given; that it was impolitic to hold out any benefits to the natural born subjects of this country to emigrate thither from hence, or to go from the other Colonies; that to form settlements in North America, far distant from the sea, or from the neighbourhood of the great navigable rivers, was extremely improper; that as to the establishment of the French laws, relative to property, being not so proper as those of England, he was astonished to hear any gentleman object to them, as it would be in the last degree cruel and unjust to force the laws of the conquerors on the conquered; that the uniform custom of all great and conquering nations had been against it; and, that therefore taking the present Bill as applying to French or English, it was perfectly right the former should receive every possible encouragement to become good subjects, and the latter meet with every possible obstruction from settling in that Province.
Colonel Barré said, that the Bill was every way complete; that its clauses perfectly corresponded with its principle; and that taking them unitedly, they were the most flagrant attack on the constitution that had hitherto been attempted. He next stated the probable number of English settlers and inhabitants; the situation of the Province at the time of the conquest; explained the terms of the Definitive Treaty of Peace; the King' s Proclamation in October, 1763; and demonstrated how repugnant they were to the design and provisions of the present Bill. He entered pretty fully into several points before spoke to, particularly relative to the French laws; and finished with observing — I cannot agree that there is any thing in the laws of England, in the trial by Jury, and the habeas corpus, that the Canadians would not very easily understand; and it is preposterous to suppose, that the superiority of good and just law, and freedom, should not be felt by People, because they had been used to arbitrary power. But why is the religion of France, as well as the law of France, to become the religion of all those People not Canadians, that pass out of one Colony into another? By this Act you establish the Roman Catholic religion where it never was established before, and you only permit the practice of your own; you do not so much as let them go hand in hand. For what purpose is the Illinois and the Ohio to be Roman Catholics? Why is that to be made the established religion of that vast country, in which are very many English settlers?
Lord John Cavendish objected to many of the principles laid down by Mr˙ Attorney. He said he did not contend for the total introduction of the English laws, particularly on a sudden, but that by blending them with their own, they might gradually conciliate the Canadians to them, and in the end be able to conquer all their present prejudices, so as to lead to the final establishment of the laws of this country. He added, that whatever compromise of this kind might be entered into on the present occasion, he could perceive no possible good reason for withholding from them the extension of the Habeas Corpus Act, and the trial by Jury.
Mr˙ Sergeant Glynn controverted most of the positions laid down by the Attorney General, particularly relative, to the true construction of the Definitive Treaty, his Majesty' s Proclamation, and the propriety of allowing the conquered to retain their own laws. He observed, that whatever contrary opinion might be maintained, it was his, that all conquests, as soon as made, vested in the King, Lords, and Commons; but that, until the two latter interfered, the King, as actual representative of the whole, was justified in making such regulations as he might think proper, so that they were not actually repugnant to the laws or constitution. The latter not being the case of the Proclamation, he thought the nation in every respect bound to fulfil every thing promised by that solemn engagement. He instanced likewise the cases of Wales, and Ireland, as conquered countries, where our laws had been established; and enlarged, in a very able manner on the many important and salutary effects that had arisen from our extending them to those countries.
Mr˙ Solicitor General denied the fact as stated by the learned Sergeant; insisted, that it was not till the reign of Henry the Eighth, that they were introduced into Wales, nor until that of James the First, that they obtained in Ireland. He said, that among all the great or powerful nations we had an account of, the Romans and English were the only two who forced their laws on the conquered; that it was a most cruel and barbarous policy, and that the English laws, how much soever we might prize them, would be the greatest curse imaginable to the Canadians.
Mr˙ Charles Fox objected to the Bill, as being contrary to the established usage of Parliament. He said a provision was made in it for securing the tythes to the Romish clergy; that this was raising money on the subject, and that consequently its originating in the other House, was not only irregular and informal, but directly repugnant to the custom and law of Parliament.
Mr˙ Dempster said, the impropriety of the Bill struck him, for it certainly was a Bill either to take away or impose a tax, and therefore should have originated in the Commons, but he should be glad of the Speaker' s opinion.
Mr˙ Sawbridge rose, saying, he found the Speaker was unwilling to rise, but that he should not ask his opinion as a favour, but as a part of his duty, and, if the honorable gentleman (Mr˙ Dempster) was willing, he would make it a question, whether the Speaker should give his opinion or not?
The Speaker rose, seemingly very angry, and said, he was not used to be called on in that manner, and that he did not think it his business to give any opinion on the affair.
A strong debate ensued, in which Mr˙ Charles Fox, Mr˙ Dempster, Mr˙ T˙ Townshend, Mr˙ Dunning, Sergeant Glynn, and Sir George Savile, strongly contended that the Bill was, to all intents and purposes, either a Bill to impose a tax, or to repeal a part of a tax, and therefore it was against a standing order, concerning the privileges of all money bills, originating in that House. Lord North, and the Attorney and Solicitor Generals, defended the Bill.
The question was then put, That the Bill be now read a second time;
The House divided: Yeas, 105; Nays, 29.
So it was resolved in the Affirmative: and the Bill was accordingly read a second time.
Resolved, That the Bill be committed to a Committee of the whole House.
Resolved, That the House will, upon Tuesday morning next, resolve itself into a Committee of the whole House, upon the said Bill.
Debate on the Second Reading of the Bill
Mr. T. Townshend
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necessarily be the creature of a Minister, you go farther, and throw under this absolute power a country never considered as Canada, and peopled by British subjects alone; for you extend the Government to the Mississippi on the West, to the Ohio on the South, to Hudson' s Bay on the North, and on the East, to God knows where; for no mortal can tell from the Bill where the Eastern boundaries are, so exceedingly indefinite and unintelligible is the Bill. I should be glad to know for what purpose the Colony is thus amazingly extended.
Lord North
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Mr. Dunning
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and dominion of the Governor; that Governor equally dependant on those in power here; that Council to be composed of Papists and Frenchmen; and this is the Government and the mode of legislation which British subjects and Englishmen are bound implicitly to obey. But what are they to have in return? Oh! The criminal law of England is to be retained; that is, when they grossly offend against the laws of society, they are entitled to the superior lenity of those criminal laws; but when they do not offend, but demean themselves peaceably, or are in the fair and honest prosecution of their rights and properties, both one and the other are to be determined on, not by the fair and equitable laws of England, but by constitutions they cannot be supposed, nor ever will be able to understand. Suppose those laws were as intelligible as they are otherwise, would it not add to the misery of an Englishman, that he perfectly understood the full meaning and extent of a lettre de cachet? Is not this part of the constitutions of Paris, on which the laws of Canada are framed? It may be objected, that being within the criminal jurisdiction, no such thing can possibly happen; but I contend for the contrary, as letters of this kind are issued upon a thousand occasions, in which no crimes are imputed to the person arrested and confined; motives of prudence, motives of convenience, of family regulation, &c˙, frequently give birth to steps of this nature. On the whole, if any thing were wanting to give me the worst opinion of this Bill, the trial by Jury in civil cases, and the habeas corpus law being omitted, would be motive strong enough with me to give it my strongest negative.
Mr. Attorney General Thurlow
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Colonel Barré
Lord John Cavendish
Mr. Sergeant Glynn
Mr. Solicitor General
Mr. Charles Fox
Mr. Dempster
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The Speaker
Strong Debate
The Bill Read the Second Time